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University of Denver School of Law
Pepper, Stephen L.

a)     DUTY – “to use reasonable care”
i)        General Duty Rule
(1)   Reasonable care under the circumstances
(2)   If an individual begins to act to rescue, then there is a new duty that is involved – an undertaking
(3)   NO DUTY TO RESUCE (failure to act) unless there is a:
(a)    Special relationship
(b)   Innocent risk creation
(c)    Instrumentality under control
(d)   Undertaking
ii)      Requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks
iii)    There is no negligence if the action is not foreseeable
(1)   Cohen v. Petty – sick man, car accident
iv)    When there is absolute liability, negligence does not need to be proven
(1)   Spano – blasting in NY – Overruled the Booth case, which stated there needed to be “physical invasion”
v)      Overrules justice Holmes ruling in Goodman, stating “inflexible rules are a bad idea”
vi)    Negligence varies from case to case in the facts, therefore use of jury should be the norm
(1)   Pokora – railroad crossing, “stop look and listen”
(1)   Where a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendants negligent conduct – plaintiff may recover
(a)   Daley v. LaCroix – dude crashed his car into a utility pole, the electric lines snapped, and caused an explosion in lady’s house
(2)   most states require the physical manifestation requirement but for two exceptions
(a)    Recovery for emotional harm resulting from the negligent transmission by a telegraph company announcing death
(b)   Negligent interference with dead bodies
viii)            FAILURE TO ACT
(1)   a mere bystander incurs no liability where he fails to take any action, however negligently or even intentionally, to rescue another in distress
(2)   The mere fact that an occurrence may have been foreseeable does not of itself show a breach of any legal duty
(a)   Bishop v. City of Chicago – dude landed plane in lake near airport, drowned
(3)   A university or its employees do not have a duty to regulate the private lives of their students
(a)   Hegel v. Langsam – student become slut and druggy
(4)   There may be a legal obligation to take positive or affirmative steps to effect the rescue of a person who is helpless or in a situation of peril, when the one proceeded against is a master or invitor, or when the injury resulted from use of an instrumentality under the control of the defendant. 
(5)   Such an obligation may exist although the accident or original injury was cause by the negligence of the plaintiff or through that of a third person and without any fault on the part of the defendant
(6)   When the defendant by his own negligence injures another, there is general agreement that he is then under a duty to take reasonable affirmative action to aid the injured person
(7)   UNDERTAKING – If began undertaking, then held to reasonable standard of care to continue to rescue
(a)   L.S. Ayres & Co. v. Hicks – boy got his hand stuck in an escalator
(8)   SPECIAL RELATIONSHIP  – Exception to the “no duty to rescue”
(9)   When a spouse has actual knowledge or special reason to know of the likelihood or his/her spouse engaging in a negligent act, a spouse has a duty of care to take reasonable steps to prevent or warn of the pending harm
(a)   J.S. and M.S. v. R.T.H – Neighbor molested girls, wife knew of the molestation
ix)    Doctors have a duty to notify third persons of violent harm that can be taken against them from their patients
(a)   Tarasoft v. Regents of University of California – psychiatrists found out about patient wanting to kill third party – did nothing
x)      PRIVITY
(1)   Privity of Contract:
(a)    Who is in privity? The people who are in relation to the contract, the people that are connected to the contract
(b)   There is no right way to see the problem, it can be seen either way
(c)    When looking at these cases, which involve contracts and tort law, a contract involves mutual assent and a contractual obligation. However with Tort law, there is not a contract, the actions that take place are based on each individuals independent actions. 
(d)   Difference between nonfeasance & misfeasance:
(i)     If there is not an undertaking, you are still in nonfeasance – mere words do not count as an undertaking
(ii)   Once privity is no longer a tort rule; then the question goes back to nonfeasance & misfeasance, was there an undertaking?
(2)   The only safe rule is to confine the right to recover to those who enter into the contract
(3)   Third parties are left out
(a)   Winterbottom v. Wright – mail coach breaks down, injuring third party, contract between mail coach and employer not employee
(4)   If the product being purchased is such a thing to place life and limb in peril when negligently made, it is considered a dangerous thing; a dangerous thing, with knowledge that it will be used by persons other than the purchaser and without new tests, the manufacturer of this thing is under a duty to make it carefully
(5)   Almost eliminates central privity created by Winterbottom – third parties can recover in certain circumstances
(a)   MacPherson v. Buick Motor Co. – tire on wheel was faulty – driver injured
(a)   Robins rule – denies plaintiff recovery for pure economic loss if that loss resulted from physical damage to property in which there is no proprietary interest
(b)   The Robins Rule is strictly meant for prevention of awarding damages where a contract between A & B is broken and from that contract breaking, damage is done to C. The majority in this case feels that Robins should be extended to claims where there is not a physical damage
(i)     State of Louisiana ex rel. Guste v. M/V Testbank – two barge ships crash in MI river and 400 square miles are shut down
b)     STANDARD OF CARE – established by precedent,
i)        Reasonable Person – perspective is from the “reasonable prudent person” or what a “reasonable prudent person would do”
(1)   A reasonable man would act with reference to the average circumstances
(a)   Blyth – “cold as fuck, pipe explodes”
(2)   A person of ordinary prudence should have reasonably foreseen the consequences, therefore liability
(a)   Gulf Refining – “bung-cap”
(3)   If an individual does not use precautions which would prevent injury, such as an ordinary man of prudence and care would use under the same circumstances, that individual is guilty of negligence.
(a)   Chicago- Kids foot severed by turntable
(4)   An action must be obviously and intrinsically dangerous to be considered dangerous
(a)   Lubitz – Golf club
(5)   Learned Hand’s Formula – weighs probability combined with injury against the burden to prevent the injury – PL < > B
(a)    Carroll Towing – burden is small, therefore liability
(b)   Davison – Burden too great, therefore no liability and assume risk of probability and injury
(6)   Solidifies jury instructions that: “in determining what a reasonable prudent man would

fect the person’s ability to act as a reasonable person would and the person must have no forewarning of mental incapacity
(5)   Most courts do not make an allowance for mental illness
(6)   No exception is made for Alzheimer’s disease, “no allowance made for lack of intelligence”
(a)   Breuning – “thought she could fly like batman”
i)        Degrees of care
(1)   The care of the standard of the reasonable person will vary according to the risk
(a)    Those who deal with things that are “known to be dangerous” need to exercise more caution than those that aren’t
(b)   Those who have a certain responsibility like a “common carrier” must exercise more care in regards to the people they are transporting
(i)     Have been instructed to the jury that a “common carrier” must exercise “the highest degree of care”
ii)      Degrees of negligence
(1)   Broken down into different kinds of conduct with different legal consequences
(a)    Slight negligence – a failure to use great care
(b)   Ordinary negligence – failure to use reasonable care
(c)    Gross negligence – failure to exercise even slight care
iii)    Willful, Wanton, and Reckless conduct
(1)   An attempt to make a distinction between negligence and intentional torts
(a)    Consisting of a deliberate and conscious disregard for a known high degree of probability of harm to another
i)       A breaking of the duty owed
ii)    Negligence Per Se
(1)   If there is a statute, then negligence is already conclusively proven, hence “negligence per se”
(a)    The statute establishes, breach, duty and standard of care – skip to causation
(2)   A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to prevent
(3)   There is no federal doctrine of negligence per se
(4)   Ordinances are treated in the same manner as statutes
(5)   Administrated regulations, Advisory codes and Voluntary Industry Standards are not “negligence per se” but can be treated as evidence for negligence
(a)   Stachniewicz – ballroom brawl
(b)   Example – Ney v. Yellow Cab – left cab unattended, stolen car accident
(i)     Court ruled that there is no negligence per se, because the harm which ensued was NOT the harm sought to be protected by the statute
(6)   A legislative code should not establish tort liability if the result would impose ruinous liability disproportionate to the seriousness of the defendants conduct
(a)   Perry – witnessing of alleged child abuse
(7)   Negligence per se is decided by the court not the jury
(8)   Court decides if statue is applicable by looking at:
(a)    Class